Pages

Monday, 25 April 2016

Whether protection against double jeopardy is available against prosecution and punishment for different offence which also arises out of same incident?

From a bare perusal of the above said fundamental right enshrined in Part III of the Constitution, it is vivid that the Constitutional protection against repeat prosecution and punishment is in regard to the same offence.

10. The said constitutional protection cannot be stretched to the extent of including protection against prosecution and punishment for a different offence, which also arises out of the same incident.

Madhya Pradesh High Court

Nadimuddin vs The State Of Madhya Pradesh on 18 September, 2015

M.Cr.C. No. 7642/2015

BENCH AT GWALIOR

Citation;2016 CRLJ1408 MP HC

1. The inherent powers of this Court are invoked u/S 482
Cr.P.C. for quashing of the interlocutory order dated 19.12.2013
passed in Criminal Case No. 2730/2012 by learned J.M.F.C.,
Morena.
2. Learned counsel for the rival parties are heard on the
question of admission.
3. Legal question involved herein is whether the protection
under Article 20(2) of Constitution of India and Section 300
Cr.P.C. against 'double jeopardy' is relateable to the one particular
offence or to all the offences which arise out of the same
act/incident.
4. Facts

of the case are that the prosecution launched against the petitioner as regards offences punishable u/S 337 and 279 of IPC culminated into passing of an order dated 15.12.2012 by theM.Cr.C. No. 7642/2015 Judicial Magistrate, I Class, Morena in case no. 2730/2012, whereby after recording of statement of admission of guilt, the petitioner was convicted for the said offences by imposing fine of Rs.1,800/- with default stipulation. Admittedly the fine is deposited

5. In this background, it is submitted that once the incident giving rise to prosecution u/S 279 and Section 337 of IPC culminated into conviction, the impugned order dated 19.12.2013 directing reopening of the same Criminal Case No. 2730/12 now alleging a graver offence punishable u/S 304-A of IPC cannot stand the test of law, especially on the anvil of the doctrine of double jeopardy enshrined in Article 20(2) of Constitution of India.

6. Similarly, Section 300 of the Cr.P.C., which is a manifestation of the above said fundamental right under Article 20(2) of the Constitution provides similar protection. For convenience and ready reference, Article 20(2) & Section 300 of Cr.P.C. are reproduced below:

(1) No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. (2) No person shall be prosecuted and punished for the same offence more than once.

(3) No person accused of any offence shall be compelled to be a witness against himself.

Section 300 - Person once convicted or acquitted not to be tried for same offence. (1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub- section (1) of section 221, or for which he might have been convicted under sub- section (2) thereof.

(2) A person acquitted or convicted of any offence may be afterwards tried, with the consent of the State Government, for any distinct offence for which a separate charge might have been made against him at the former trial under sub- section (1) of section 220.

(3) A person convicted of any offence constituted by any act causing consequences which, together with such act, M.Cr.C. No. 7642/2015 constituted a different offence from that of which he was convicted, may be afterwards tried for such last- mentioned offence, if the consequences had not happened, or were not known to the Court to have happened, at the time when he was convicted.

(4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.

(5) A person discharged under section 258 shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the first- mentioned Court is subordinate. (6) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897, (10 of 1897 ) or of section 188 of this Code.

7. Section 300 of Cr.P.C is more elaborate and explanatory than Article 20 (2) of Constitution of India. Sub Sections (2) and (3) of Section 300 of Cr.P.C. empowers the State to frame charge and prosecute a person for a different offence notwithstanding the same person having been tried and convicted of a different offence arising out of the same incident/act/transaction.

8. The concept of double jeopardy raised as a ground of challenge herein is enshrined underArticle 20(2) of the Constitution of India which is reproduced (supra).

9. From a bare perusal of the above said fundamental right enshrined in Part III of the Constitution, it is vivid that the Constitutional protection against repeat prosecution and punishment is in regard to the same offence.

10. The said constitutional protection cannot be stretched to the extent of including protection against prosecution and punishment for a different offence, which also arises out of the same incident.

The law in this regard is well settled in view of several Constitution Bench decisions of the Apex Court which continue to hold the field till today. The relevant extracts of the decisions are reproduced M.Cr.C. No. 7642/2015 below to elaborate the settled legal position. Maqbool Hussain v. State of Bombay, AIR 1953 SC 325, "7. The fundamental right which is guaranteed inArticle 20(2) enunciates the principle of "autrefois convict" or "double jeopardy". The roots of that principle are to be found in the well-established rule of the common law of England "that where a person has been convicted of an offence by a court of competent jurisdiction the conviction is a bar to all further criminal proceedings for the same offence". (Per Charles, J. in Reg v. Miles, 24 QBD 423). To the same effect is the ancient maxim "Nimo Bis Debet Puniri pro Uno Delicto", that is to say that no one ought to be twice punished for one offence or as it is sometimes written "Pro Eadem Causa", that is, for the same cause.

8. This is the principle on which the party pursued has available to him the plea of "autrefois convict" or "autrefois acquit". "The plea of 'autrefois convict' or 'autrefois acquit' avers that the defendant has been previously convicted or acquitted on a charge for the same offence as that in respect of which he is arraigned.... The question for the jury on the issue is whether the defendant has previously been in jeopardy in respect of the charge on which he is arraigned, for the rule of law is that a person must not be put in peril twice for the same offence. The test is whether the former offence and the offence now charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify a conviction of the other, not that the facts relied on by the Crown are the same in the two trials. A plea of 'autrefois acquit' is not proved unless it is shown that the verdict of acquittal of the previous charge necessarily involves an acquittal of the latter." (Vide Halsbury's Laws of England, Hailsham Edition, Vol. 9, pp. 152 and 153, para 212).

9. This principle found recognition in Section 26 of the General Clauses Act, 1897,--

"Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments but shall not be liable to be punished twice for the same offence," and also in Section 403(1) of the Criminal Procedure Code, 1898,-- "A person who has been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Section 236, or for which he might have been convicted under Section 237." ...

11. These were the materials which formed the background of the guarantee of fundamental right given in Article 20(2). It incorporated within its scope the plea of "autrefois convict" as known to the British jurisprudence or the plea of double jeopardy as known to the American Constitution but circumscribed it by providing that there should be not only a prosecution but also a punishment in the first instance in order to operate as a bar to a second prosecution and punishment for the same offence. ..."

S.A. Venkataraman v. Union of India, AIR 1954 SC 375, "4. ... The roots of the principle, which this clause enacts, are to be found in the well-established rule of English law which finds expression in the maxim Nemo debet bis vexari -- a man must not be put twice in peril for the same offence. If a man is indicted again for the same offence in an English court, he can plead, as a complete defence, his M.Cr.C. No. 7642/2015 former acquittal or conviction, or as it is technically expressed, take the plea of autrefois acquit or autrefois convict. The corresponding provision in the Federal Constitution of the U.S.A. is contained in the Fifth Amendment, which provides inter alia: "Nor shall any person be subjected for the same offence to be put twice in jeopardy of life and limb." This principle has been recognized and adopted by the Indian Legislature and is embodied in the provisions of Section 26 of the General Clauses Act andSection 403 of the Criminal Procedure Code.

5. Although these were the materials which formed the background of the guarantee of the fundamental right given in Article 20(2) of the Constitution, the ambit and contents of the guarantee, as this court pointed out in the case referred to above, are much narrower than those of the common law rule in England or the doctrine of "Double Jeopardy" in the American Constitution. Article 20(2) of our Constitution, it is to be noted, does not contain the principle of autrefois acquit at all. It seems that our Constitution-makers did not think it necessary to raise one part of the common law rule to the level of a fundamental right and thus make it immune from legislative interference. This has been left to be regulated by the general law of the land. In order to enable a citizen to invoke the protection of clause (2) of Article 20 of the Constitution, there must have been both prosecution and punishment in respect of the same offence. The words "prosecuted and punished" are to be taken not distributively so as to mean prosecuted or punished. Both the factors must co-exist in order that the operation of the clause may be attracted. ...

15. It may be pointed out that the words "prosecution" and "punishment" have no fixed connotation and they are susceptible of both a wider and a narrower meaning; but in Article 20(2) both these words have been used with reference to an "offence" and the word "offence" has to be taken in the sense in which it is used in the General Clauses Act as meaning "an act or omission made punishable by any law for the time being in force". It follows that the prosecution must be in reference to the law which creates the offence and the punishment must also be in accordance with what that law prescribes. ..."

13. To operate as a bar the second prosecution and the consequential punishment thereunder, must be for "the same offence". The crucial requirement therefore for attracting the Article is that the offences are the same i.e. they should be identical. If, however, the two offences are distinct, then notwithstanding that the allegations of facts in the two complaints might be substantially similar, the benefit of the ban cannot be invoked. It is, therefore, necessary to analyse and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out. ..."

State of Bihar v. Murad Ali Khan, (1988) 4 SCC 655, "26. Broadly speaking, a protection against a second or multiple punishment for the same offence, technical complexities aside, includes a protection against re-prosecution after acquittal, a protection against re-prosecution after conviction and a protection against double or multiple punishment for the same offence. These protections have since received constitutional guarantee under Article 20(2). But difficulties arise in the application of the principle in the context of what is meant by "same offence". ...

27. The expression "the same offence", "substantially the same offence" "in effect the same offence" or "practically the same", have not M.Cr.C. No. 7642/2015 done much to lessen the difficulty in applying the tests to identify the legal common denominators of "same offence". Friedland in Double Jeopardy (Oxford 1969) says at p. 108:

"The trouble with this approach is that it is vague and hazy and conceals the thought processes of the court. Such an inexact test must depend upon the individual impressions of the judges and can give little guidance for future decisions. A more serious consequence is the fact that a decision in one case that two offences are 'substantially the same' may compel the same result in another case involving the same two offences where the circumstances may be such that a second prosecution should be permissible...."

28. In order that the prohibition is attracted the same act must constitute an offence under more than one Act. If there are two distinct and separate offences with different ingredients under two different enactments, a double punishment is not barred. ..."

State v. Nalini, (1999) 5 SCC 253, "236. The well-known maxim "nemo debet bis vexari pro eadem causa" (no person should be twice vexed for the same offence) embodies the well-established common law rule that no one should be put to peril twice for the same offence. The principle which is sought to be incorporated into Section 300 of the Criminal Procedure Code is that no man should be vexed with more than one trial for offences arising out of identical acts committed by him. When an offence has already been the subject of judicial adjudication, whether it ended in acquittal or conviction, it is negation of criminal justice to allow repetition of the adjudication in a separate trial on the same set of facts.

237. Though Article 20(2) of the Constitution of India embodies a protection against a second trial after a conviction of the same offence, the ambit of the clause is narrower than the protection afforded by Section 300 of the Criminal Procedure Code. It was held by this Court in Manipur Admn. v. Thokchom Bira Singh (AIR 1965 SC 87) that "if there is no punishment for the offence as a result of the prosecution, Article 20(2) has no application". While the clause embodies the principle of autrefois convict Section 300 of the Criminal Procedure Code combines both autrefois convict and autrefois acquit. ..."

Monica Bedi v. State of A.P., (2011) 1 SCC 284, "22. Article 20(2) embodies a protection against a second trial and conviction for the same offence. The fundamental right guaranteed is the manifestation of a long struggle by the mankind for human rights. A similar guarantee is to be found in almost all civilised societies governed by rule of law. The well-known maxim nemo debet bis vexari pro una et eadem causa embodies the well-established common law rule that no one should be put on peril twice for the same offence. Blackstone referred to this universal maxim of the common law of England that no man is to be brought into jeopardy of his life more than once for the same offence.

23. The fundamental right guaranteed under Article 20(2) has its roots in common law maxim nemo debet bis vexari -- a man shall not be brought into danger for one and the same offence more than once. If a person is charged again for the same offence, he can plead, as a complete defence, his former conviction, or as it is technically expressed, take the plea of autrefois convict. This in essence is the common law principle. The corresponding provision in the American Constitution is enshrined in that part of the Fifth Amendment which declares that no person shall be subject for the same offence to be twice put in jeopardy of life or limb. The principle has been recognised in the existing law in India and is enacted in Section 26 of the General M.Cr.C. No. 7642/2015 Clauses Act, 1897 and Section 300 of the Criminal Procedure Code, 1973. This was the inspiration and background for incorporating sub- clause (2) into Article 20 of the Constitution. But the ambit and content of the guaranteed fundamental right are much narrower than those of the common law in England or the doctrine of "double jeopardy" in the American Constitution. ...

26. What is the meaning of the expression used in Article 20(2) "for the same offence"? What is prohibited under Article 20(2) is that the second prosecution and conviction must be for the same offence. If the offences are distinct, there is no question of the rule as to double jeopardy being applicable.

xxxxxx

29. It is thus clear that the same facts may give rise to different prosecutions and punishment and in such an event the protection afforded by Article 20(2) is not available. It is settled law that a person can be prosecuted and punished more than once even on substantially same facts provided the ingredients of both the offences are totally different and they did not form the same offence. ..."

Sangeetaben Mahendrabhai Patel v. State of Gujarat, (2012) 7 SCC 621, "33. ... the law is well settled that in order to attract the provisions of Article 20(2) of the Constitution i.e. doctrine of autrefois acquit or Section 300 CrPC or Section 71 IPC or Section 26 of the General Clauses Act, the ingredients of the offences in the earlier case as well as in the latter case must be the same and not different. The test to ascertain whether the two offences are the same is not the identity of the allegations but the identity of the ingredients of the offence. Motive for committing the offence cannot be termed as the ingredients of offences to determine the issue. The plea of autrefois acquit is not proved unless it is shown that the judgment of acquittal in the previous charge necessarily involves an acquittal of the latter charge. ..."

State (NCT of Delhi) v. Sanjay, (2014) 9 SCC 772, "52. It is well-known principle that the rule against double jeopardy is based on a maxim nemo debet bis vexari pro una et eadem causa, which means no man shall be put in jeopardy twice for one and the same offence. Article 20 of the Constitution provides that no person shall be prosecuted or punished for the offence more than once. However, it is also settled that a subsequent trial or a prosecution and punishment has no bar if the ingredients of the two offences are distinct."

12. One single incident may gave rise to various offences differently defined and punishable in the Indian Penal Code. If a person has been tried and convicted for a less grave offence arising out of one particular incident, then he can very well to be tried for a graver offence which may also arise out of the same M.Cr.C. No. 7642/2015 incident. The Constitutional protection under Article 20(2) is against an offence and not against act/incident.

13. At this juncture, it is relevant to mention the differences between the offence punishable u/S 279 read with Section 337 of IPC and the offence punishable u/S 304 A of IPC for which the present impugned prosecution has been initiated. Section 304A of IPC relates to Chapter XVI of the IPC relating to offences affecting the human body. For convenience and ready reference,Section 304A of IPC is reproduced herein below:

Section 304A - Causing death by negligence. Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

13.1. A bare perusal of the above said Section 304A IPC makes it clear that when death occurs due to rash and negligent act, it amounts to culpable homicide.

13.2. Whereas the earlier offence u/S 279 and 337 of IPC for which the petitioner has already been convicted,relates to Chapter XIV of IPC, which pertains to offence affecting public health, safety, decency and morals. Similarly Section 337 IPC though relates to the same Chapter XVI to which Section 304A IPC belongs, but the said Section 337 IPC arises when only hurt is caused due to an act which endangers life or personal safety of others.

13.3. Thus, a marked difference exists between Section 304A IPC on the one hand and Section 279 and Section 337 IPC on the other hand. Section 304A IPC gets attracted when, death takes place due to rash and negligent act, whereas when mere hurt takes place, Section 337 of IPC can be invoked. Whereas Section 279 IPC gets attracted merely by driving a vehicle on public way in a rash and negligent manner which endangers human life, which may or may not cause an injury to anyone.

13.4. Consequently, Section 279 and 337 IPC on the one hand and Section 304A IPC on the other are distinct in their basic M.Cr.C. No. 7642/2015 constitution, basic ingredients, definitions and the punishments they attract. Thus, the distinction between the two classes of offence is so vividly pronounced that even if they arise out of one single transaction or act, they can attract separate and distinct prosecution and punishment.

14. Coming to the type of cases for which the petitioner had been earlier convicted and the graver offence for which impugned prosecution is taking place, it is seen that initial prosecution is related to offences punishable u/S 337 and 279 of IPC. Section 279 of IPC relates to endangering human life by rash and negligent driving on public way and invites maximum punishment of six months of imprisonment or with fine which may extend to Rs.1,000/- or with both. WhereasSection 337 of IPC relates to causing hurt to any person by doing rash and negligent act as to endanger human life or personal safety of others. This offence attracts maximum punishment of six months and or fine to the extent of Rs. 500/-.

15. It is thus evident that the applicant can very well be prosecuted for a graver offence punishable u/S 304A of IPC, despite having been earlier prosecuted and punished for a lesser offence punishable u/S 337 read with Section 279 of IPC, notwithstanding the said graver offence arising out of the same incident/act which gave rise to the less grave offence for which prosecution and conviction stands concluded.

16. In view of the above, no case for interference is made out as the sole ground of double jeopardy raised by the petitioner to assail the impugned order dated 15.12.2012 by the Judicial Magistrate, I Class, Morena in case no. 2730/2012 is not tenable

17. Consequently, the M.Cr.C. deserves to be and is therefore rejected with no cost.